Investigation: Disclosed the fire originating along the north wall towards the west corner of 1724. The fire originates on a wood shelf adjacent to a wall mounted box housing a duplex electrical outlet and an electrical switch. An electrical heating iron used for a lamination process was plugged into the top of the duplex outlet and the iron was found on the wooden shelf. All insulation was burned away from the cord as a result of the fire. An approximately 1 foot long piece of electrical cord remained in the bottom part of the duplex with slight beading noted at the end of the cord. The owner reports that a retracting extension cord was kept plugged in there. Note -- the heating iron in question has no on/off switch. Temperature adjustment can be made but the unit must be unplugged to de-energize it.

This property was the site of a 2 alarm fire on 10/25/88. Lt. Sheldon's investigation, cause: electric/wiring.

Ex. 2 of Pls.' Mem. of Law in Response to City of Philadelphia's Mt. for Partial Summ. J. (hereinafter Pls.' Mem. of Law at Ex. .").

Gallo maintains that the salient point in the report is that Lt. Pelszynski listed the cause of the fire as "ELEC/APPL," meaning, Gallo contends, that Lt. Pelszynski believed an electrical appliance caused the fire, specifically, a "Heating Iron to Class A Combustible." Although Gallo does not know when this report was prepared, he claims that it was the "original report." See Pls.' Mem. of Law at 8.

Gallo then filed a claim for damages with his insurance carrier, defendant Pennsylvania Lumbermens Mutual Insurance Co. ("PLM"). PLM hired defendant Gerald Kufta of Kufta Associates to conduct an investigation into the cause of the fire at Gallo Cabinets. Defendant Kufta Associates in turn retained the law firm of Cozen & O'Connor and its Director of Investigations -- and former Philadelphia Fire Commissioner -- Joseph Rizzo, to assist in the investigation. Both Cozen & O'Connor and Rizzo are also defendants in this case.

Gallo claims that Kufta and Rizzo visited the fire scene on June 13, 1989. That same day, Rizzo called Lt. Pelszynski, see Pl.'s Mem. of Law at Ex. 3 (time records for Cozen & O'Connor at entry no. 2). Kufta also spoke to Lt. Pelszynski before visiting the fire scene and spoke to him at least once thereafter. See Kufta's Dep. at 94 (attached to Pls.' Mem. of Law at Ex. 4).

Gallo claims that, after speaking with Rizzo and Kufta, Lt. Pelszynski changed his previously prepared Fire Marshal's Incident Report. See Pls.' Mem. of Law at 5. The "revised" Incident Report states, in addition to the text quoted above,

Method of IGN: Open Flame

. . . .

. . . .

The owner, in a telephone interview, stated that the business had closed on Friday at approximately 4:30 pm that the heating irons are no longer used in their laminate process.

Attachment: At 10:00 am, 6/28/89, Mr. James Gallo Jr. presented himself at the F.M.O., 3rd & Spring Garden Sts., for a scheduled interview with Lts. R. Pelszynski & J. O'Drain. Mr. Gallo informed Lts. Pelszynski & O'Drain that upon the advice of his lawyer, David Pallett - 790-1444, he declined to answer any questions. Mr. Gallo then left the F.M.O. at approximately 10:15 am.

"At some point thereafter" Lt. Pelszynski referred the Gallo Cabinets investigation to the joint Philadelphia-Federal Arson task force. Pls.' Mem. of Law at 6.
*fn1"
In July of 1990, the United States Attorney's Office for our District launched an investigation into the fire at Gallo Cabinets, and, on May 31, 1994, a grand jury indicted Gallo on two counts of mail fraud, one count of malicious destruction of a building by fire, and one count of making a false statement to obtain a loan. Defendants Thomas J. Rooney and William J. Campbell, Special Agents of the Federal Bureau of Alcohol, Tobacco, and Firearms ("ATF"), were involved in the federal investigation and eventual criminal prosecution of Gallo.

Gallo's criminal defense attorney then served federal prosecutors with requests for "production of all exculpatory evidence and documents pursuant to Brady v. Maryland." 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215. Pls.' Mem. of Law at 8. Gallo claims that the Government failed immediately to produce or disclose the existence of the "original" Fire Marshal's Incident Report, which, Gallo asserts, ruled the fire at his store to be accidental. See id.; see supra pp. 1-2 (quoting report).

Gallo's lawyer also served Cozen & O'Connor, PLM, Kufta, Rizzo, and Lt. Pelszynski with subpoenas, pursuant to Fed. R. Crim. P. 17(c), to produce "all materials contained in their files relating to the Gallo fire." Pls.' Mem. of Law at 9. Gallo charges that these defendants, like the Government, failed immediately to produce or disclose the existence of Lt. Pelszynski's "original" Incident Report. See id.

Finally, on January 6, 1995, the Government produced a copy of Lt. Pelszynski's "original" Incident Report. According to Gallo, "this was the first notice Gallo had as to the fact and existence of a second report Fire Marshal's Incident Report different from the one that was ultimately issued by the Fire Department." Pls.' Mem. of Law at 9.

A week later, on January 13, 1995, Gallo pled guilty to one count of bank fraud in connection with overstating his income in order to obtain a line of credit from Bell Savings Bank. Gallo went to trial, however, on the remaining two counts of the federal indictment on March 21, 1995, and on April 19, he was acquitted of both charges.

Over a year later, on May 23, 1996, Gallo and his wife, Rose Maria Gallo, filed this § 1983 suit against the City of Philadelphia, Lt. Pelszynski, Kufta, Kufta Associates, Cozen & O'Connor, Rizzo, Mitchell Goldberg, an attorney at Cozen & O'Connor, and PLM.
*fn2"
On January 2, 1997, Gallo filed a new suit, C.A. No. 97-7, against ATF Agents Rooney and Campbell, asserting that they deprived him of his constitutional rights when they failed to produce or disclose the existence of the "original" Incident Report to Gallo until January of 1995, three months before Gallo's criminal trial.
*fn3"

The City of Philadelphia and Lt. Pelszynski have now moved for partial summary judgment, and ATF Agents Rooney and Campbell have filed a motion to dismiss the case against them. For the reasons elaborated below, we shall grant both motions.

II. Legal Analysis

In order to make sense of the complaint here, it is first necessary to understand what is not at issue.

The constitutional wrong being alleged here is not that the exculpatory report was withheld from plaintiff.
*fn4"
It was that the report was withheld from the Assistant U.S. Attorney. Plaintiff should never have been prosecuted for arson in the first place. If defendants had disclosed to the prosecutor the report and the circumstances of its alteration, Gallo never would have been [sic ]. Even if the U.S. Attorney had been so misguided as to seek an indictment on these tenuous facts, the grand jury -- confronted with two contradictory incident reports and no coherent explanation -- would probably have refused. By the time the report was finally produced, the harm had already been done. Gallo had been under indictment for seven months, despite the utter lack of probable cause to charge him with arson.

Pls.' Mem. of Law at 12-13.

Thus, Gallo hypothesizes that if federal prosecutors had known about or had been told about the "exculpatory report," the Government would not have prosecuted him. And if the Government had, notwithstanding the "exculpatory report," decided to prosecute him (which, of course, it did), the grand jury, Gallo speculates, would have performed the function envisioned for it under the Fifth Amendment and would have refused to indict him.

Gallo in essence claims that his constitutional rights were violated because the Government did not weigh the evidence in his criminal case as he would have and because the proceeding did not cease solely because there was exculpatory evidence that (in Gallo's mind at least) should have aborted his prosecution. Stripping the allegations to their core, Gallo's complaint is that he was maliciously prosecuted. See Pls.' Mem. of Law at 11.

There is no Fourteenth Amendment substantive due process right to be free from malicious prosecution. See Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 811, 127 L. Ed. 2d 114 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 115 n.3 (2d Cir. 1995) (quoting excerpts from all four concurring opinions in Albright for the proposition that a plaintiff may not assert a claim for malicious prosecution as a substantive due process claim), cert. denied, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir. 1994) ("Albright would appear virtually to foreclose reliance on substantive due process as the basis for a viable malicious prosecution claim under section 1983 . . . ."). The Supreme Court has, however, not foreclosed the possibility that a malicious prosecution cause of action may be actionable under the Fourth Amendment in a § 1983 claim. See Albright, 114 S. Ct. at 813; Singer, 63 F.3d at 115 n.4 (analysis of the four separate opinions in Albright yields the conclusion that the Fourth Amendment is the source for a § 1983 action premised on a person's arrest); Smart v. Board of Trustees, 34 F.3d 432, 434 (7th Cir. 1994) (reading Albright as allowing malicious prosecution claims so long as they are brought under the Fourth Amendment), cert. denied, 513 U.S. 1129, 130 L. Ed. 2d 885, 115 S. Ct. 941 (1995). Accordingly, we will view Gallo's malicious prosecution claim as one asserting a deprivation of his Fourth Amendment right to be free from an unreasonable seizure. See Compl. at P 134-35.

"The Fourth Amendment right implicated in a malicious prosecution action is the right to be free of unreasonable seizure of the person -- i.e., the right to be free of unreasonable or unwarranted restraints on personal liberty. A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must therefore show some deprivation of liberty consistent with the concept of 'seizure.'" Singer, 63 F.3d at 116 (2d Cir. 1995); see also Torres I, 1996 U.S. Dist. LEXIS 17189, *16, 1996 WL 680274, at *6; Torres v. McLaughlin, 966 F. Supp. 1353, 1361 n.7 (E.D. Pa. 1997), appealed on other grounds docket, June 23, 1997 ("Torres II ").

Gallo was indicted on May 31, 1994, and, two months later, on August 4, 1994, he was arraigned before United States Magistrate Judge M. Faith Angell, see Pls. Mem. of Law at Ex. 10 (Notice of Arraignment), who released Gallo on a $ 10,000 own-recognizance bond. See Pls.' Mem. of Law at 16. Gallo was also prohibited from traveling beyond the borders of the Commonwealth of Pennsylvania and the State of New Jersey, and he was ordered to "check in" with Pretrial Services on a weekly basis. These pretrial release conditions remained in place until his acquittal eight and a half months later. See id.

The question before us is whether these "restraints" on Gallo's liberty during the prosecution of his criminal case amount to a deprivation of Gallo's Fourth Amendment right to be free of an unreasonable "seizure." This case is not the first time we have addressed this issue, for in Torres II, 966 F. Supp. 1353, we recently had occasion to canvass this evolving area of the law.

Gallo's argument that he suffered constitutionally-significant pretrial restraints on his liberty finds support in Justice Ginsburg's concurrence in Albright v. Oliver, 510 U.S. 266, 278, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994), which, as we explained in Torres II, suggested that someone in Gallo's position suffers a "seizure" under the Fourth Amendment, even while not in physical custody, as long as the criminal charges against him remain pending. See Torres II, 966 F. Supp. at 1360. Justices Souter, Stevens, and Blackmum, we also noted, appeared to support Justice Ginsburg's view. See 966 F. Supp. at 1360, at n.6.

Third, we explained that, contrary to the Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), Justice Ginsburg's concurrence would do away with the common law distinctions between the torts of false arrest and malicious prosecution. See Torres II, 966 F. Supp. at 1362-63. We reasoned that, if Justice Ginsburg's suggestion were heeded and the Fourth Amendment given "full sway" so that plaintiffs like Gallo no longer need to fit their claims into the molds of the common law torts, then the extensive body of federal case law defining when the appropriate statute of limitations is triggered would be abandoned. 966 F. Supp. at 1363.

Finally, we explained that the courts that have addressed the issue have observed that, while "every person who is the victim of an unlawful prosecution must spend time, money and emotional resources preparing a defense" and that "clearly, every person subject to an unlawful prosecution faces the possibility of reputational harm . . ., Niemann, 911 F. Supp. at 670, these types of deprivations simply do not qualify as a deprivation of liberty meriting Fourth Amendment protection." See Albright v. Oliver, 975 F.2d 343, 346 (7th Cir. 1992), aff'd, 510 U.S. 266, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994).

The Second Circuit last month addressed this very issue in Murphy v. Lynn, 118 F.3d 938, 1997 WL 371091 (2d Cir. 1997). In Lynn, a divided panel of the court of appeals held that a criminal defendant who could not "leave the State of New York" and had been required to "attend court appointments" had suffered a pretrial "'seizure' within the meaning of the Fourth Amendment" such that he could assert a § 1983 malicious prosecution. 118 F.3d at 945. The holding in Lynn was based on three legal conclusions, none of which we find compelling and none of which we will follow.

First, Judge Kearse, writing for the panel, recognized that although the "roots [of the right to travel] have never been identified with particularity," 118 F.3d at 945, Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54, "made plain that the liberties protected by [the Fourth] Amendment included the accused's freedom to travel while on pretrial release." 118 F.3d at 945. Judge Jacobs, dissenting in part, noted however that:

The way in which Gerstein supposedly makes this "plain" is that Gerstein cites the (now-repealed) 18 U.S.C. § 3146(a)(2) to illustrate the 'burdensome conditions that effect a significant restraint on liberty." [ Lynn, 118 F.3d at 945, 1996 WL 371091, at *5]. True, the conditions of release listed in § 3146(a)(2) include restrictions on travel, but that subsection also lists restrictions on "place of abode," a category that includes home detention, which may well amount to seizure under the Fourth Amendment. There is no way to tell whether the Supreme Court intended to classify travel restriction as a 'burdensome condition,' but I do not agree that citation to § 3146(a)(2) in Gerstein settles the issue or makes plain' much of anything.

Consequently, a person, according to the Restatement, may be confined to a city, see id. § 36, illustration 6; Helstrom v. North Slope Borough, 797 P.2d 1192 (Alaska 1990); Allen v. Fromme, 141 A.D. 362, 126 N.Y.S. 520 (App. Div. 1910), a state, see Restatement (Second) of Torts § 36, illustration 6; Lynn, 118 F.3d 938, 1997 WL 371091, at *6, or even the "rest of the habitable world" outside the United States, see § 36, illustration 6. Whatever may be the wisdom of the Restatement's view of the matter under the common law, it only informs, but hardly dictates, the constitutional right at issue, and thus we choose not to import its suggestion into the constitutional domain. See Siegert v. Gilley, 500 U.S. 226, 233, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991); Singer, 63 F.3d at 116 ("The Supreme Court has recognized that, 'in some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right'; still it is only the violation of the constitutional right that is actionable and compensable under § 1983." (quoting Carey v. Piphus, 435 U.S. 247, 258, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978))); Albright, 975 F.2d at 346; Torres II, 966 F. Supp. at 1361 n.7.

We instead agree with the holding in Albright v. Oliver, 975 F.2d 343 (7th Cir. 1992), where a unanimous panel of the Seventh Circuit dismissed Albright's § 1983 claim because, the Court of Appeals concluded, having to remain in one's home state as a condition of one's pretrial release does not constitute a "seizure" under the Fourth Amendment. Judge Posner, writing for the panel, reasoned that, while Albright "was, it is true, 'confined' to Illinois; and if Denmark was a dungeon to Hamlet (as the latter claimed), we suppose Illinois could be a prison to Kevin Albright," 975 F.2d at 346, the arrestee's confinement to the entire state did not constitute a "seizure" under the Fourth Amendment. See id.; see also Lynn, 118 F.3d at 953, 1997 WL 371091, at *16 (Jacobs, J., dissenting in part) ("In my view, a person who is free to come and go in his own town and state cannot be said to be 'seized' within the meaning of the Fourth Amendment.").

We find that being confined to Pennsylvania and New Jersey -- a land area much larger than Denmark
*fn8"
-- did not constitute a pretrial "seizure" under the Fourth Amendment,
*fn9"
and thus, absent any constitutionally-significant pretrial restraints on Gallo's liberty, we find that he may not maintain a § 1983 claim for malicious prosecution based on the few months between his arraignment and acquittal. See Torres II, 966 F. Supp. at 1364; see also T.L. Baker v. McCollan, 443 U.S. 137, 145, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979) ("The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted -- indeed, for every suspect released."). Whether Gallo has any evidence to make out the common law elements of a malicious prosecution claim is of no moment because Gallo suffered no constitutional deprivation sufficient to assert a § 1983 malicious prosecution claim. See Torres II, 966 F. Supp. at 1361 n.7; see supra n.4.

AND NOW, this 15th day of August, 1997, upon consideration of the City of Philadelphia's motion for partial summary judgment, plaintiffs' response thereto, ATF Agents Rooney and Campbell's motion to dismiss, plaintiff's response thereto, and the ATF Agents' reply, and in accordance with the accompanying memorandum of law, it is hereby ORDERED that:

1. The City of Philadelphia's motion for partial summary judgment is GRANTED:

(a) All § 1983 claims against the City of Philadelphia and defendant Lt. Pelszysnki are DISMISSED WITH PREJUDICE;

(b) All state law claims against the City of Philadelphia are DISMISSED WITHOUT PREJUDICE, and jurisdiction as to these claims is declined under 28 U.S.C. § 1361(c);

(c) Judgment is ENTERED against plaintiffs and in favor of the City of Philadelphia;

2. The ATF Agents Rooney's and Campbell's motion to dismiss is GRANTED;

3. All of plaintiffs claims against ATF Agents Rooney and Campbell are DISMISSED WITH PREJUDICE;

4. The parties shall, by September 15, 1997, file motions for summary judgment with regard to Count XIV of the complaint, and responses, if any, shall be filed no later than September 29, 1997; and

5. Discovery as to state law claims against the remaining defendants is STAYED pending the disposition of the motions for summary judgment.

BY THE COURT:

Stewart Dalzell, J.

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